Category Archives: Intellectual Property

A uniform system of protection of intellectual property rights, ranging from industrial property to copyright and related rights, constitutes the foundation for creativeness and innovation within the European Union. Respect of the basic principles of the internal market (the free movement of goods and services and free competition) is based on standardisation of intellectual property at European level. Protection of intellectual property is covered by many international conventions, most of which are implemented by the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO). The European Union possesses two important bodies to carry out its mission: the Office for Harmonisation in the Internal Market (OHIM), which is responsible for the registration of Community trade marks and designs, and the European Patent Office (EPO). The Commission is currently campaigning for the effective introduction of a Community patent system, which would be less costly and more legally effective, as a guarantee of competitiveness for European industry. Finally, the protection of these rights also entails protecting them against piracy, illegal trade and counterfeiting.

Internal Market

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Internal Market

Internal Market Contents

  • Internal market: general framework
  • Living and working in the internal market: Free movement of people, asylum and immigration, free movement of workers
  • Single Market for Goods: Free movement of goods, technical harmonisation, product labelling and packaging, consumer safety, pharmaceutical and cosmetic products, chemical products, motor vehicles, construction, external dimension
  • Single market for services: Free movement of services, professional occupations, services of general interest, transport, Information Society, postal services, financial services, banks, insurance, securities markets
  • Single market for capital: Free movement of capital, economic and monetary union, economic and private stakeholders, fiscal aspects, combating fraud, external relations
  • Businesses in the internal market: Company law, public procurement, intellectual property

See also

Living and working in the internal market.
Overviews of European Union: Internal market.
Further information: the Internal Market and Services Directorate-General of the European Commission.

Copyright and related rights: satellite broadcasting and cable retransmission

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Copyright and related rights: satellite broadcasting and cable retransmission

Outline of the Community (European Union) legislation about Copyright and related rights: satellite broadcasting and cable retransmission

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Copyright and related rights: satellite broadcasting and cable retransmission

Document or Iniciative

Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

Summary

Satellite broadcasting

The satellite broadcasting of copyright works requires the authorisation of the rightholder. The right may be acquired from the rightholder only by agreement.

Performers are granted an exclusive right to:

  • broadcast live performances by satellite;
  • fix (record) an unfixed performance;
  • reproduce a fixation of a performance.

Where a phonogram is used for a satellite broadcast, an equitable remuneration is to be paid to the performers, or to the producers of phonograms, or to both. Broadcasting organizations have exclusive rights over the retransmission, fixation and reproduction of fixations of their broadcasts.

Limits may be imposed on the right to authorise or prohibit broadcasting, for example in the case of private use or the use of short excerpts in connection with the reporting of current events.

Member States may establish more far-reaching protection than that required by the Directive.

Cable retransmission

Cable retransmission of broadcasts is governed by copyright and related rights in the Member States and by agreements between copyright owners, holders of related rights and cable operators.

These rights to authorise or prohibit the cable retransmission of a broadcast are exercised through a collecting society, except where they are exercised by a broadcasting organization in respect of its own transmissions.

Where no agreement can be reached allowing cable retransmission of a broadcast, the parties may call upon the assistance of one or more mediators. The mediators have the task of providing assistance with negotiation and may also submit non-binding recommendations to the parties.

The Directive also lays down rules governing the impact of the new provisions on existing situations, with special reference to current contracts and arbitration systems for disputes over the cable retransmission of broadcasts.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 93/83/EEC – 1.1.1995 OJ L 248 of 6.10.1993

Related Acts

Report from the European Commission on the application of Council Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission [COM/2002/0430 final – Not published in the Official Journal].
This report analyses the transposition into national law of Council Directive 93/83/EEC and examines the ractical application of the Directive.

The Commission notes that, generally speaking, the mechanisms put in place by the Directive contribute tothe cross-border broadcasting of television programmes. The Commission also presents certain lines of thought aimed at improving some of the mechanisms.

The Commission highlights two points which it intends to examine in greater depth:

  • the difficulties which citizens encounter in trying to access satellite channels transmitted outside the Member State in which they are resident;
  • the need to adapt certain current mechanisms relating to the protection of copyright and related rights (settlement of disputes, role of collecting societies).

In its conclusions the Commission emphasises that the methods of managing rights to cable retransmission and mediation will be assessed in the general context of the evolution of the media in the information society. Only after that has been done will the Commission consider whether or not to revise Directive 93/83/EEC.

Copyright and related rights: term of protection

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Copyright and related rights: term of protection

Outline of the Community (European Union) legislation about Copyright and related rights: term of protection

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Copyright and related rights: term of protection

Document or Iniciative

Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version).

Summary

The term of protection of copyright for a literary or artistic work is set at 70 years from:

  • the death of the author of the work or the death of the last surviving author in the case of a work of joint ownership;
  • the date on which the work was lawfully made available to the public if it is anonymous or was produced under a pseudonym.

The term of protection for a film or audiovisual work is set at 70 years after the death of the last survivor among the following: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.

Related rights

The term of protection of related rights (performers, producers of phonograms, film producers and broadcasting organisations) is set at 50 years. This term is to be calculated on a case-by-case basis from the date of the performance, the publication or communication of its fixation.

Calculating terms

The term of protection begins simultaneously in all the Member States. It is calculated from 1 January of the year following the event giving rise to it.

Protection of works from Non-EU Member Countries

If the work originates in a third country and the author is not a Community national, the protection granted in the Member States ends at the final date of protection in the country of origin, but must not exceed the term set in the Community.

Notification

The Member States are required to communicate to the Commission immediately any plans for new related rights.

Context

Directive 2006/116/EC codifies and repeals Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights which was substantially amended by Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

REFERENCES

Act

Entry into force – Date of expiry

Deadline for transposition in the Member States

Official Journal

Directive 2006/116/EC [Procedure: codecision COD/2006/0071]

16.1.2007

1.7.1995 for provisions of Directive 93/98/EEC (repealed)
22.12.2002 for provisions of Directive 2001/29/EC (repealed)

OJ L 372 of 27.12.2006

RELATED ACTS

Proposal for a Directive of the European Parliament and of the Council amending Directive 2006/116/EEC of 16 July 2008 of the European Parliament and of the Council on the term of protection of copyright and certain related rights [COM(2008) 464 final – Not published in the Official Journal].

This Proposal aims to extend the term of protection for performers’ and producers’ rights from 50 to years, from publication of the work. This extension would allow performers to commercially exploit their work for a longer time, and record producers to generate additional income from the sale of recordings in their stores and on the Internet.
Furthermore, the Commission proposes a uniform way of calculating the term of protection for musical compositions containing the contributions of several authors. The proposed rule provides that the term of protection of a musical composition shall expire 70 years after the death of the last surviving author, whether they are the author of the words or the composer of the music.
Codecision procedure (COD/2008/0157)

Community design

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Community design

Outline of the Community (European Union) legislation about Community design

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Community design

Document or Iniciative

Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs. [See amending acts].

Summary

The Regulation lays down a simple and inexpensive procedure for registering designs with the Office for Harmonisation in the Internal Market – an EU Agency based in Alicante.

The aim is to remove sources of competitive distortion at European level and to put an end to the legal uncertainty facing industry as a result of the differences in national legislation. The introduction of a Community design is also aimed at encouraging creativity and innovation by providing reliable and uniform protection throughout the EU.

The European system coexists with the national protection systems. Any issues not falling within the scope of the Regulation are covered by the national law of the Member State.

Scope

To qualify for protection, designs must be new and have an individual character (they must be different from existing products). Parts of complex products whose appearance determines the designs concerned (such as visible replacement parts in cars) will not be protected by this system. However, parts of other products which are visible during normal use of the product in which they are integrated may qualify for the protection provided by this Regulation.

Rights conferred by Community design

The right to the Community design is vested in the designer or his successor in title. The Regulation provides for two types of protection of designs directly applicable in each Member State, i.e.:

  • without any formalities, as an “unregistered Community design”;
  • As a “registered Community design”, if it is registered with the Office for Harmonisation in the Internal Market (OHIM).

The differences between the two types of protection

The characteristic feature of the protection granted to an unregistered Community design is that it is short-term: it is protected for a period of three years from the date on which the design was first made available to the public within the EU (the product was put on sale through marketing or prior publication measures). This form of protection may be useful in sectors which produce large quantities of designs intended for products which frequently have a short economic life. The provisions of the Regulation will thus allow them to qualify for a certain level of protection without having to go through a longer procedure.

In the case of the registered Community design, the protection is for a minimum of five years and a maximum of twenty-five years.

Moreover, the degree of protection conferred on registered designs differs from that conferred on unregistered designs. Registered designs are protected against both systematic copying and the independent development of similar designs, whereas unregistered designs are protected only against systematic copying.

A registered design thus benefits from more formal and more comprehensive legal certainty.

Moreover, the OHIM is not responsible for unregistered Community designs.

Limitation of the rights

The rights conferred by the Community design do not extend to acts done privately and for non-commercial purposes, to acts done for experimental purposes, and to acts of reproduction for teaching purposes, for example.

This Regulation does not apply to equipment on ships and aircraft registered in a third country when these temporarily enter the territory of the EU.

Implementation of the Regulation

The Office deals with implementation of the Regulation at European level.

The Member States designate one or more Community design courts of first and second instance responsible primarily for:

  • infringement actions and – if they are permitted by national law – actions in respect of threatened infringement;
  • actions for a declaration of invalidity of an unregistered Community design;
  • counterclaims for a declaration of invalidity of a Community design raised in connection with infringement actions.

Registration of a Community design

An application to register a Community design may be submitted to the Office, the central industrial property office of a Member State or, in the Benelux countries which already have a common design, to the Benelux Design Office. In all cases, the application is transmitted to the Office, which conducts a formal examination and, where applicable, grants the Community design to the applicant by entering it in the Community Design Register. The entry is then published by the Office in a bulletin open to the public. The applicant may request that publication be deferred for a period of 30 months from the date of filing in order to protect sensitive information.

Registration with the Office has been possible since 2003.

Licences

A Community design may be licensed for the whole or part of the Union. A licence may be exclusive or non-exclusive. The consent of the right-holder is essential.

Invalidity

A registered Community design may be declared invalid by the Office either following a direct application to the Office or by a Community Design Court on a counterclaim * in connection with an infringement action. Declaration of invalidity may be applied for particularly if:

  • the design does not meet the requirements laid down for a Community design;
  • the holder does not have a right to the Community design;
  • the design constitutes an improper use of a work protected under the copyright law of a Member State.

The Office or the Community Design Courts may declare a design invalid, in accordance with their powers, on the basis of a valid application setting out acceptable grounds. In certain cases, the design may be maintained in a modified form.

Surrender of a Community design

The right-holder may surrender a Community design in part or in its entirety. The Office and, where applicable, the licence holders, must be informed accordingly. The surrender is published by the Office.

Appeals

The decisions taken by the Office concerning registered designs are open to appeal before the Board of Appeal. Its decisions are also open to appeal before the Court of Justice of the European Union. It is possible to appeal to the Court of Justice in certain cases, particularly if it is felt that there has been a lack of competence, an infringement of the Treaty, or an infringement of this Regulation.

Penalties

The measures which may be taken in the event of infringement are set out in the Regulation. These include the prohibition of production and the seizure of the infringing products. The court in the Member State may also impose other penalties.

Procedural language

Applications for registration must be made in one of the official languages of the EU. Applicants must also specify a second language – which must be one of the working languages of the Office – that they will accept for possible use as the procedural language in dealings with the Office.

Background

The process of harmonising national legislation on the protection of designs was launched by Directive 98/71/EC. The Directive did not, however, provide for the creation of a Community design, given that it was still necessary to register the design in the Member States. This Regulation therefore introduces, for the first time, a uniform European system for the protection of designs.

Key terms used in the act
  • Counterclaim: Request made by a defendant against a party who has made a claim against him and before the same court.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 6/2002

6.3.2002

–

OJ L 3, 5.1.2002.
Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded – Annex II: List referred to in Article 20 of the Act of Accession – 4. Company law – C. Industrial Property rights – III. Community Designs

1.5.2004

–

OJ L 236, 23.9.2003.

Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded – Annex III: List referred to in Article 16 of the Protocol: adaptations to acts adopted by the institutions – 1.Company Law – Industrial Property Rights – III. Community Designs

1.1.2007

–

OJ L 157, 21.6.2005.

Regulation (EC) No 1891/2006

1.1.2008

–

OJ L 386, 29.12.2006.

Related Acts

International design registration system of the World Intellectual Property Organisation (WIPO)

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (Text with EEA relevance) [OJ L 78 of 24.3.2009].

Council Decision 2006/954/EC of 18 December 2006 approving the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs, adopted in Geneva on 2 July 1999 [Official Journal L 386 of 29.12.2006].

Implementing regulation

Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs [Official Journal L 341 of 17.12.2002].

Fees payable to the Office

Commission Regulation (EC) No 2246/2002 of 16 December 2002 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in respect of the registration of Community designs [Official Journal L 341 of 17.12.2002].

Approximation of national legislation

Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs [Official Journal L 289 of 28.10.1998].

This Directive on the legal protection of designs aims at approximating national legislation on the protection of designs with a view to promoting innovation and eliminating the obstacles to free competition on the internal market.

Resale right for the benefit of the author of an original work of art

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Resale right for the benefit of the author of an original work of art

Outline of the Community (European Union) legislation about Resale right for the benefit of the author of an original work of art

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Resale right for the benefit of the author of an original work of art

Document or Iniciative

Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art.

Summary

Member States’ legislation needs to be harmonised at Community level by introducing a compulsory resale right * for the benefit of the author.

Works of art to which the resale right relates

The resale right applies to works of graphic art or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided that:

  • they are made entirely by the artist; or
  • they are copies considered to be original works of art according to professional usage (limited productions or signed works, for example).

The resale right does not apply to original manuscripts of writers or composers.

Subject matter of the resale right

The resale right is normally payable by the seller. Nevertheless, Member States may pass legislation permitting a professional other than the seller to be the sole person responsible for paying the resale right or to share this responsibility with the seller.

Member States may also determine that the resale right does not apply to acts of resale where the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed EUR 10 000.

Term of protection of the resale right

The term of protection is provided for by Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights and lasts for a period of 70 years after the death of the author.

To enable them to adapt to these new requirements, Member States which do not apply the resale right on the date on which the Directive enters into force (13 October 2001) are not required, up until 1 January 2010 at the latest, to apply the resale right for the benefit of those entitled under the artist after his or her death. This period can be extended for a further two years if appropriate justification is presented.

Calculation of the resale right

Member States are obliged to set a minimum sale price as of which sales will be subject to the resale right. This minimum sale price may not exceed EUR 3 000.

Artists receive royalties calculated as a percentage of the sale price of their works. The sale price is divided into five portions and the rate of the royalty ranges from 4% to 0.25%, depending on the portion.

However, the total amount of the royalty may not exceed EUR 12 500.

Beneficiaries

The resale right is enjoyed by the author of the work and, after his or her death, by those entitled under him or her.

Authors who are nationals of non-EU countries enjoy the resale right if the legislation in their country permits resale right protection in that country for authors from the Member States.

However, Member States may decide to apply this Directive to authors who are nationals of non-EU countries but whose habitual residence is in the Member State concerned.

Right to obtain information

For a period of three years after the resale, the persons entitled to receive royalties have the right to demand of any art market professional any information that may be necessary to secure payment of royalties from the resale.

Application in time

This Directive applies to all original works of art which, on 1 January 2006, are still protected by the legislation of the Member States in the field of copyright or meet the criteria for protection under the provisions of this Directive on that date.

Background

Although the Berne Convention for the Protection of Literary and Artistic Works gives the author of an original work of art the resale right, this however is not binding, which means that certain Member States do not apply it. As a result of this, there are barriers to the internal market and distortions of competition within it as well as a lack of protection for the authors of original artistic works.

Key terms used in the act
  • Resale right: The right, for the benefit of the author of an original work of art, to receive a percentage of the price obtained for any resale, made by professionals from the art market, of this work (auction houses, galleries or any other art market).

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2001/84/EC 13.10.2002 1.1.2006
1.1.2010		 OJ L 272, 13.10.2001

Related Acts

Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) [Official Journal L 372 of 27.12.2006].

Legal protection of services based on, or consisting of, conditional access

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Legal protection of services based on, or consisting of, conditional access

Outline of the Community (European Union) legislation about Legal protection of services based on, or consisting of, conditional access

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Legal protection of services based on, or consisting of, conditional access

ACT

European Parliament and Council Directive 98/84/EC of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access.

SUMMARY

Scope

The proposal covers all services supplied on the basis of conditional * access, such as pay-television and pay-radio services, on-demand video and audio services, electronic publishing and a large range of on-line services that are available to the public on a subscription or pay-per-view basis.

Illicit activities

Each Member State is required to take the measures necessary to prohibit on its territory the following activities:

  • the manufacture, import, sale, renting or possession for commercial purposes of illicit devices, i.e. any equipment or software designed or adapted to give unauthorised access to a protected service *;
  • the installation, maintenance or replacement for commercial purposes of an illicit device;
  • the use of commercial communications to promote illicit devices.

Sanctions and remedies

Each Member State is required to take the measures necessary:

  • to provide sanctions which are effective, deterrent and proportional to the potential impact of the infringing activity;
  • to ensure that service providers whose interests are affected by an infringing activity carried out on its territory can bring an action for damages and seek an injunction and, where appropriate, apply for the seizure of illicit devices.

Principles relating to the internal market

Member States are not permitted:

  • to restrict the provision of protected services, or associated services, that originate in another Member State;
  • to restrict the free movement of conditional access devices, except those devices designated by the Directive as illicit.

Key terms used in the act

  • Protected service: television broadcasting, radio broadcasting or information society service provided against remuneration and on the basis of conditional access.
  • Conditional access: technical measure and arrangement whereby access to the protected service in an intelligible form is made conditional upon prior individual authorisation.

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 98/84/CE [adoption: codecision COD/1997/0198]

28.11.1998

28.05.2000

OJ L 320 of 28.11.1998

RELATED ACTS

Second report of 30 September 2008 on the implementation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998, on the legal protection of services based on, or consisting of, conditional access [COM(2008) 593 final – Not published in the Official Journal].

The Commission notes that the transposition of Directive 98/84/EC has allowed piracy to be reduced in the European Union, and particularly in countries where accession is recent. It underlines however two major difficulties: the lack of technical knowledge on the part of the authorities responsible for implementation, related in particular to fast developments in this field, and the low level of sanctions. The Commission insists moreover on the importance of allowing European citizens living in a Member State other than their State of origin to have access to a legal audiovisual offer in their native language, which would contribute to the free movement of persons and services.
The Commission proposes to set up an expert group on conditional access which will act to reinforce administrative cooperation between Member States and discuss problems related to the application of the Directive. The subjects to be tackled as priorities would be in particular: new forms of piracy, the deterrent nature of sanctions, the possible sanction on the possession of systems enabling access to services in an illicit way, links with provisions on copyright protection and the inclusion of digital rights management (DRM) in conditional access services.

Report from the Commission of 24 April 2003 on the implementation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, and consisting of, conditional access [COM(2003) 198 final – Not published in the Official Journal].
This first Commission report on the implementation of Directive 98/84/EC is part of the Commission’s comprehensive Internal Market strategy to remove barriers to services.
It describes and analyses the salient facts relating to the key provisions of the Directive, looks at how these provisions are implemented and enforced by Member States and candidate countries, and highlights current trends in piracy.
It covers the period from adoption of the Directive in November 1998 through to the end of 2002.
The report shows that the implementation of the Directive has not yet been fully achieved within the enlarged Union, and stresses that enforcement at national level has to be consolidated and that joint efforts will be instrumental in fighting piracy effectively.
The report observes that pirating electronic pay services is considered to be a cyber crime. It concludes that it would be premature to propose amendments to the Directive, but that the consultations and assessment undertaken in the context of the Report have enabled the Commission to identify several issues that deserve further reflection. These issues include the need to create a balanced and coherent enforcement framework applicable to all kinds of piracy and counterfeiting and the distribution of keys and illicit devices via the Internet.

Management of online rights in musical works

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Management of online rights in musical works

Outline of the Community (European Union) legislation about Management of online rights in musical works

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Management of online rights in musical works

Document or Iniciative

Commission Recommendation 2005/737/EC of 18 May 2005 on collective cross-border management of copyright and related rights for legitimate online music services [Official Journal L 276, 21.10.2005].

Summary

This Recommendation on the management of online rights in musical works puts forward measures for improving the EU-wide licensing of copyright and related rights for legitimate online music services. Improvements are necessary because new Internet-based services such as “webcasting” *, “streaming” * or on on-demand music downloads need a licence that covers their activities throughout the EU.

Relations between right-holders, collective rights managers and commercial users

Right-holders * should be able to able to entrust management of the rights necessary to operate online music services, on the territorial scale of their choice, to the rights manager * of their choice. The choice of such a rights manager should be possible irrespective of the latter’s Member State of residence or nationality.

As regards the licensing of online rights *, the relationship between right-holders and collective rights managers, should be governed by, at least, the following:

  • right-holders should be able to determine the online rights to be entrusted for collective management;
  • right-holders should be able to determine the territorial scope of the mandate of the collective rights managers;
  • right-holders should have the right to withdraw any of the online rights and transfer the management of those rights to another collective rights manager, irrespective of the latter’s Member State of residence or nationality;

Collective rights managers should inform right-holders and commercial users * of the repertoire * they represent, any existing reciprocal representation agreements, the territorial scope of their mandates for that repertoire and the applicable tariffs.

Collective rights managers should grant commercial users licences on the basis of objective and non-discriminatory criteria.

Equitable distribution and deductions

Collective rights managers should distribute royalties charged on downloaded online music to all right-holders or the category of right-holders they represent in an equitable manner.

Contracts between collective rights managers and right-holders should specify whether any deductions from the royalties are to be distributed for purposes other than for the management services provided. Such deductions should be specified to right-holders upon payment of the royalties.

Non-discrimination and representation

The relationship between collective rights managers and right-holders should be based on the following principles:

  • equal treatment of any category of right-holder as regards all elements of the management service provided;
  • fair and balanced representation of right-holders in the internal decision-making process.

Accountability

Collective rights managers should report regularly to all right-holders they represent on any licences granted, applicable tariffs and royalties collected and distributed.

Dispute settlement

Member States are invited to provide for dispute resolution mechanisms, in particular in relation to tariffs, licensing conditions, entrustment of online rights for management and withdrawal of rights.

Background

At present, licensing of online rights is often restricted to a particular territory. Commercial users needs to negotiate in each Member State with collective rights managers to obtain the right-holder’s permission. Thus, the absence of a single EU-wide copyright and related rights licence for online music services may act as a brake on development of such music services.

In July 2005, the European Commission published a study (EN ) (pdf) on the detailed rules for issuing licences to use musical works over the internet. The study concludes that there is a need to reorganise the cross-border collective management of copyright and related rights for the use of online music. To this end, it suggests enabling right-holders to authorise a collective rights manager of their choice to manage their work throughout the EU.

Key terms used in the act
Webcasting: the broadcasting of audio and/or video content over the internet.
Streaming: technology used in webcasting for the broadcasting of audio and video content.
Right-holder: any natural or legal person that holds rights.

Collective rights manager: any organisation the sole or one of the main objects of which is to manage or administer copyright or related rights.
Online rights: online rights cover:
– exclusive right of reproduction;
– the right of communication to the public of a musical work, either in the form of a right to authorise or prohibit, or a right to equitable remuneration. This includes webcasting, internet radio and near-on-demand services received either on a personal computer or on a mobile telephone;
– the exclusive right of making available a musical work, which includes on-demand or other interactive services;
Commercial user: any person involved in the provision of online music services who needs a licence from right-holders in order to provide legitimate online music services;
Repertoire: the catalogue of musical works administered by a collective rights manager.

Accession to the WIPO Treaties

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Accession to the WIPO Treaties

Outline of the Community (European Union) legislation about Accession to the WIPO Treaties

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Accession to the WIPO Treaties

Document or Iniciative

Council Decision of 16 March 2000, on the approval on behalf of the European Community of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty [Not published in the Official Journal].

Summary

Context 
The Conventions of Paris (protection of industrial property) and Bern (protection of literary and artistic works) form the basis of the WIPO Treaties. Subsequent treaties extended the protection offered by taking account of technical developments and new fields of interest (e.g. the information society).

The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) aim to update international protection of copyright and related rights in the Internet age, by supplementing the provisions of the Bern Convention to adapt them to the digital environment.

WIPO Copyright Treaty (WCT) 
According to the provisions of the Treaty, authors will enjoy legal protection for the distribution, commercial rental and communication to the public of their works on the network. Specific protection is also provided for technical operations and systems for identifying and managing works.

WIPO Performances and Phonograms Treaty (WPPT) 
This Treaty concerns related rights and improves the protection of artists/performers and producers of phonograms. They enjoy exclusive rights for the copying, distribution, commercial rental and making of their performances and phonograms available to the public via networks. They also have a right of remuneration for broadcasting and any other means of communication to the public for commercial purposes.

Accession of the Community 
In the Decision, the Council approves the two WIPO Treaties on behalf of the Community and authorises the Commission to represent the Community at the meetings of the Assemblies referred to in the Treaties. The Commission may also negotiate in this context on the basis of briefs agreed beforehand by the Commission and the Council within the competent Council working party or at ad hoc meetings. For the first time, the Community as such may become party to WIPO Treaties in the field of copyright and neighbouring rights.

Entry into force of the Treaties 
These Treaties will enter into force three months after 30 instruments of ratification or accession have been submitted to WIPO.

The Community’s instruments of ratification will be deposited following the deadline for the Member States’ transposition of the legislation necessary to adapt Community legislation to the content of the Treaties. The legislation in question is the Directive on copyright and related rights in the information society, which was adopted on 22 May 2001 and the deadline for transposition of which is 22 December 2002.

Establishment of the Community Patent Court

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Establishment of the Community Patent Court

Outline of the Community (European Union) legislation about Establishment of the Community Patent Court

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Establishment of the Community Patent Court

Proposals

Proposal for a Council decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent; and

Proposal for a Council decision establishing the Community Patent Court and concerning appeals before the Court of First Instance.

Summary

Proposal on the jurisdiction of the Court of Justice

The first proposal put forward by the Commission aims to confer exclusive jurisdiction on the Court of Justice in disputes relating to Community patents.

In accordance with this proposal, the Court shall have jurisdiction over:

  • disputes relating to the infringement and the validity of the Community patent;
  • the use of an invention after the publication of the Community patent application or the right based on prior use of the invention;
  • interim and evidence-protection measures in connection with the subject matters conferred;
  • damages or compensation in the circumstances set out above;
  • the ordering of a penalty payment in case of non-compliance with a decision or order.

Given that the Community Patent Court will only be established after a transitional period (at the latest by 2010), the proposal contains a transitional provision under which the national courts shall retain jurisdiction during this period. Disputes of which a national court has already been seized during the transitional period will not therefore be affected by the conferral of jurisdiction on the Court of Justice.

Proposal establishing the Community Patent Court

The second proposal establishes the Community Patent Court, under the aegis of the Court of Justice. The jurisdiction of the Community Patent Court is determined by way of reference to the Council Decision, as set out in the proposal above, which confers jurisdiction on the Court of Justice in disputes relating to the Community patent. The Court will thus be competent, at first instance, in the areas specified in this Decision (see above).

It is proposed that the Court consist of seven judges, who shall be appointed for a period of six years. The Judges shall be chosen from candidates presented by the Member States. They shall be appointed by the Council of Ministers on the basis of their legal expertise in patent law, following consultation of an advisory committee. Once appointed, the judges will elect a president from among their number for a term of three years with the possibility of re-election.

The Court shall sit in chambers of three Judges. In certain cases, it may sit in an enlarged configuration, or be constituted by a single Judge.

The Court may order interim measures even before the commencement of proceedings on the merits of the case.

The language of proceedings is, as a general rule, the official language of the Member State where the defendant is domiciled.

An appeal against a decision of the Community Patent Court may be brought before the Court of First Instance within two weeks of its notification. It is proposed that a specialised chamber be set up within the Court of First Instance to hear appeals against decisions of the Community Patent Court. The appeal may be based on points of law (such as a breach of procedure) or matters of fact (e.g. a re-evaluation of the facts or evidence).

It should be noted that the establishment of this Community Court signifies a major change, as the Court of Justice will henceforth have jurisdiction to rule on disputes involving private parties, whereas up until now it only encountered this type of dispute in the context of questions referred for a preliminary ruling.

References And Procedure

Proposal Official Journal Procedure
COM(2003) 827 / Cooperation CNS/2003/0326
COM(2003) 828 / Cooperation CNS/2003/0324

Technology transfer agreements

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Technology transfer agreements

Outline of the Community (European Union) legislation about Technology transfer agreements

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Technology transfer agreements

Document or Iniciative

Commission Regulation (EC) No 772/2004 of 7 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements.

Summary

Intellectual property legislation confers exclusive rights on holders of patents *, copyright, design rights, registered trademarks and other rights protected by the law. A holder of intellectual property rights is authorised to prevent any unauthorised use of its intellectual property * and to exploit such property, in particular by licensing it to third parties. Technology transfer agreements * concern the licensing of technology.

Such agreements will usually improve economic efficiency and be pro-competitive as they can reduce duplication of research and development, strengthen the incentive for the initial research and development, spur incremental innovation, facilitate diffusion and generate product market competition. However, licensing agreements may also be used for anti-competitive purposes, e.g. where two competitors use a licensing agreement to share out markets between themselves or where an important licence holder excludes competing technologies from the market.

In order to strike the right balance between the protection of competition and the protection of intellectual property rights, this block exemption regulation creates an area of certainty for most licensing agreements. The guidelines specify how Article 101 of the Treaty on the Functioning of the European Union (TFEU) (ex-Article 81 of the Treaty establishing the European Community (TEC)) should be applied to agreements not falling within the area of certainty.

Scope

The scope of the new rules not only covers patent and know-how * licensing agreements but also applies to design and model rights and software copyright licences. In cases where the Commission does not have the right to adopt a block exemption regulation, e.g. for agreements on patent pooling or the granting of copyright licences in general, the guidelines provide clear guidance on the future policy regarding the application of the rules. This regulation does not, however, concern licensing agreements relating to the subcontracting of R&D activities.

Implementing conditions

In order to determine the area of certainty applicable to licensing agreements, this regulation distinguishes between competing and non-competing undertakings, regarding the former as undertakings which compete on the relevant technology market and/or the relevant product market.

The regulation stipulates, however, that the following are exempt from the restrictions laid down in Article 101(1) TFEU (ex-Article 81(1) TEC):

  • agreements concluded between competing undertakings where the market share does not exceed 20 % of the relevant market;
  • agreements concluded between non-competing undertakings where the market share does not exceed 30 % of the relevant market.

These exemptions are granted on condition that the agreements do not contain certain restrictions that have serious anti-competitive effects. In this respect, the regulation lists a whole set of hardcore and excluded restrictions (Articles 4 and 5) that have serious anti-competitive effects and are, therefore, prohibited. In other words, anything not expressly excluded from the block exemption regulation is exempt. In the absence of hardcore restrictions, undertakings that sign agreements not exceeding the market share thresholds may consider their agreements to be compatible with European competition legislation.

Market share is calculated on the basis of market sales value data relating to the preceding calendar year. If the market share is initially not more than 20 % or 30 % but subsequently rises above that level, the exemption continues to apply for a period of two consecutive calendar years following the year in which the 20 % or 30 % threshold was first exceeded.

Withdrawal of the exemption

Regulation (EC) No 1/2003 empowers the competent authorities of European Union (EU) countries to withdraw the benefit of the block exemption in respect of technology transfer agreements having effects incompatible with Article 101(3) TFEU (ex-Article 81(3) TEC) in their respectively territory or in a part of that territory and where such territory has the characteristics of a distinct geographic market. EU countries must ensure uniform application throughout the common market of the EU competition rules.

The Commission may also withdraw the benefit of this regulation where:

  • it finds in any particular case that a technology transfer agreement has effects which are incompatible with Article 101(3) TFEU;
  • it notes the existence of parallel networks covering more than 50 % of a relevant market. In this case, the Commission may declare by regulation that this regulation is not applicable.

Agreements already in force on 30 April 2004 which satisfy the conditions for exemption provided for in Regulation (EC) No 240/96 are not prohibited during the period from 1 May 2004 to 31 March 2006.

Background

Regulation (EC) No 772/2004 falls within the framework of Regulation No 19/65/EEC empowering the Commission in accordance with Article 101(3) TFEU to exempt certain types of agreement. It replaces Regulation (EC) No 240/96 of 31 January 1996, which expired on 30 April 2004.

Key terms used in the act
  • Technology transfer agreement: a patent licensing agreement, a know-how licensing agreement, a software copyright licensing agreement or a mixed patent, know-how or software copyright licensing agreement, including any such agreement containing provisions which relate to the sale and purchase of products or which relate to the licensing of other intellectual property rights or the assignment of intellectual property rights, provided that those provisions do not constitute the primary object of the agreement and are directly related to the production of the copyright products; assignments of patents, know-how, software copyright or a combination thereof where part of the risk associated with the exploitation of the technology remains with the assignor are also deemed to be technology transfer agreements.
  • Intellectual property rights: industrial property rights, know-how, copyright and neighbouring rights.
  • Patents: patents, patent applications, utility models, applications for registration of utility models, designs, topographies of semi-conductor products, supplementary protection certificates for medicinal products or other products for which such supplementary protection certificates may be obtained and plant breeder’s certificates.
  • Know-how: a package of non-patented practical information, resulting from experience and testing, which is secret (that is to say, not generally know or easily accessible), substantial (that is to say, significant and useful for the production of the contract products) and identified (that is to say, described in a sufficiently comprehensive manner so as to make it possible to verify that it fulfils the criteria of secrecy and substantiality).
Act Entry into force – Date of expiry Deadline for transposition in the Member States Official Journal

Regulation (EC) No 772/2004

1.5.2004 – 30.4.2014

–

OJ L 123 of 27.4.2004

Related Acts

Commission Notice – Guidelines on the application of Article 81 of the EC Treaty to technology transfer agreements [Official Journal C 101 of 27.4.2004].
The purpose of these guidelines is to provide guidance on the application of the block exemption regulation and on the application of Article 101 TFEU (ex-Article 81 TEC) to technology transfer agreements that fall outside the scope of the regulation. For example, in the case of agreements pooling patents or the granting of copyright licences in general, the guidelines provide clear guidance on the future policy on applying the rules. The block exemption regulation and the guidelines are not prejudicial to possible parallel application of Article 102 TFEU (ex-Article 82 TEC) to licensing agreements. The criteria set out in the guidelines must be applied in the light of the circumstances of the individual case, thereby ruling out any mechanical application. The Commission will monitor how the regulation and the guidelines are being applied under the new implementation arrangements introduced by Regulation (EC) No 1/2003 in order to determine whether any amendments should be made.